Disclaimer: This article aims to provide educational information surrounding Same-Sex Marriage. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.
It has been almost 20 years since the status of same-sex marriage was clarified in The Civil Marriage Act, but many people still have questions about the state of same-sex couples in Canada today.
How does the law treat divorce in Ontario between persons of the same sex? What happens when couples get married in Canada but live in a country that does not allow same-sex marriage? This article will outline Canadian and Ontario law on the subject.
Canadian Law, the Civil Marriage Act and same-sex marriage
Since 2005, same-sex couples can be legally married, and the law has been largely the same as for opposite-sex couples.
Ontario and many other provinces had legalized same-sex marriage as early as 2003. However, The Supreme Court of Canada confirmed that changing the definition of marriage to recognize same-sex unions fell under federal jurisdiction, and it became federal law through the Civil Marriage Act in 2005.
The Act defines marriage as the union between two people to the exclusion of all others. It provides that religious group officials cannot be compelled to perform same-sex marriages if those are not by religious beliefs. The remainder of the Act contains “consequential amendments,” meaning adjustments in wording to other laws to conform with this definition of marriage.
What does the law in Ontario say about divorce for same-sex couples?
In Ontario, same-sex couples have equal rights under the federal Divorce Act, which allows them to seek divorce on the same terms as opposite-sex couples. Regardless of where the marriage occurred, as long as it was legally recognized, the Divorce Act applies equally to all married couples.
Relief under the Divorce Act
Additionally, same-sex couples are entitled to seek “corollary relief” under the Act, addressing issues such as spousal support, property division, child support, and custody arrangements.
To be eligible for a divorce order, one or both spouses must have been “habitually resident” in Canada for at least one year before initiating the divorce proceedings. We will discuss an exception to that rule later in this article.
Equalization of property under The Family Law Act
Furthermore, same-sex couples in Ontario are entitled to equal treatment under The Family Law Act regarding the equalization of property. This means that upon divorce, assets accumulated during the marriage are subject to division, regardless of the gender or sexual orientation of the spouses. The law aims to ensure fairness and equity in the distribution of marital property, recognizing the contributions of both spouses to the marriage, irrespective of their sexual orientation.
What does Ontario family law say about child support, parenting time and decision-making responsibilities?
The rights of same-sex parents closely parallel those of heterosexual parents in many aspects. Both same-sex and heterosexual couples have equal rights when it comes to decision making, parenting time, and support of their children under the law.
For instance, if a same-sex couple adopts a child together, they are both recognized as legal parents with the same rights and responsibilities as any other parent. Similarly, suppose a same-sex partner has been acting as a parent to a child. In that case, they can be required to pay child support, similar to a heterosexual, non-biological or non-adoptive parent.
The law continues to evolve to reflect the diverse ways families are formed. For example, the All Families Are Equal Act was passed in 2019. It recognizes up to four parents for a child, regardless of biological ties. This provision ensures that all parents, irrespective of sexual orientation, can be legally recognized and share parental rights and responsibilities.
Same-sex divorce for non-residents who were legally married in Canada
When The Divorce Act was updated to allow same-sex relationships to end in divorce, an interesting situation developed. Under The Divorce Act, you or your spouse must be a habitual resident in Canada for 12 months to get divorced, regardless of whether you are a same-sex or opposite-sex couple.
Many foreign couples had same-sex marriages performed in Canada because their countries did not permit them. Suppose a foreign couple was married in Ontario and then returned to their home country. The relationship ends, and the couple now wants to get a divorce. They could not obtain a divorce in Canada under The Divorce Act because neither party has been a resident of Ontario. Their home country does not permit same-sex marriages, so they cannot be divorced there.
The Civil Marriages Act was amended in 2013 to close this gap. Section 7 now notes that “the court in the province where the marriage occurred may, upon request, grant the spouses a divorce” under the following circumstances:
- There has been a breakdown in the marriage, evidenced by the spouses having lived separately and apart for at least one year.
- Neither spouse is currently residing in Canada at the time of the application.
- Each spouse has been residing in a country or state where a divorce cannot be granted because that marriage is not recognized as valid for at least one year immediately preceding the application.
Plat Simionati LLP: Ontario Family lawyers for all families
Regardless of how your family is formed, it is essential to have legal advice that you can trust. At Plat Simionati, we exclusively practice family law, and we do it well.
Our team is dedicated to championing the rights of all families and providing expert guidance through every aspect of your legal journey. With a deep understanding of the complexities surrounding same-sex marriage, divorce, and family law in Ontario, we provide compassionate and comprehensive legal support.
Reach out to our team today!